COMECE expresses concern over EU Court judgement on same-sex marriage

Source: COMECE

The Commission of the Bishops' Conferences of the European Union (COMECE) expresses concern in a statement over a recent ruling by the EU Court of Justice on the recognition of same-sex marriages across Member States.

In a statement released on Tuesday, December 9, the Commission of the Bishops' Conferences of the European Union (COMECE) expressed concern over a recent judgment issued by the Court of Justice of the European Union (CJEU) regarding the recognition of same-sex marriages across EU nations.

On November 25, the CJEU ruled that an EU Member State "has the obligation to recognise a marriage between two Union citizens of the same sex that has been lawfully concluded in another Member State where they have exercised their freedom to move and reside."

The case concerned a Polish couple who married in Germany in 2018. When they moved back to Poland, authorities refused their request to transcribe their certificate in the Polish civil register, as the national law does not allow for same-sex marriage.

"While fully respecting the role of the EU judiciary, we feel compelled to comment on some aspects of the ruling, noting with concern its impact upon questions that are at the core of national competence," the COMECE wrote in their statement.

They noted that the EU Court had already made advances in this area with past judgements, but that this recent ruling "appears to push jurisprudence beyond the boundaries of EU competences."

Ruling on marriage is a matter of national law

The EU Court ruling specifies that the obligation to recognize a marriage like in this case "does not undermine the institution of marriage in the Member State of origin, which is defined by national law". Thus, each nation is free to decide whether to allow or not same-sex marriage and as EU law currently stands, it cannot detract from that competence.

However, the COMECE highlights that "the EU Court strictly narrows down the significance of such affirmation by underlining that in exercising this competence, each Member State must comply with EU law."

"We note with worry the trend to apply provisions that should protect sensitive components of national legal systems in a way that impoverishes their meaning," the Commission wrote, citing Article 9 of the EU Charter of Fundamental Rights, which states that the right to marry and found a family is guaranteed according to national laws.

"Marriage is defined as a union between a man and a woman in the legal systems of various EU Member States, including, in some cases, by means of Constitutional provisions," the COMECE stated, noting that for some EU nations the definition of marriage forms a part of their national identity.

The Commission also highlighted some other points of concern, such as the fact that this ruling has an impact on legal certainty, as EU States may not be able to foresee in the future which parts of their family law will remain within their autonomy.

Additionally, the COMECE underlined with concern that this judgment could bring negative developments and future similar legal approaches in other sensitive areas, such as surrogacy.